Constitutional Government, Judicial Review, Civil Rights and Civil Liberties Notes

Constitutional Government and Judicial Review

• Constitutional government is limited by a written charter, such as a constitution.

• A constitution is the supreme law of the land.

  • It grants authority to the government.

  • It establishes the structure and rules for the government.

• Purpose:

  • Defines the limits of the government's power to prevent tyranny or lawlessness.

  • Outlines the roles, functions, and duties of the government.

  • Enumerates people’s rights and liberties in the social contract, serving as the mainstay of rights.

• The constitution serves as a symbol of a nation.

• The U.S. Constitution is relatively short, aged, and general, requiring interpretation.

• Marbury v. Madison (1803) established judicial review.

  • Judicial review gives the Supreme Court the power to determine the constitutionality of laws and actions of other government branches.

  • The Supreme Court can invalidate laws and actions that violate the Constitution.

• The Supreme Court is the gatekeeper of the Constitution.

• Not every law goes to the Supreme Court for judicial review automatically.

  • A case must be filed in a lower court first.

  • It must go through higher courts by appeals to reach the Supreme Court.

• The Supreme Court does not review all cases filed.

  • It can be strategic and political in selecting cases (judicial activism).

  • Typically, only 100-150 cases are heard each year out of thousands filed.

• There are different schools of interpretation in jurisprudence:

  • Originalist: Interpreting the Constitution based on its original meaning at the time of enactment.

  • Pragmatist: Interpreting the Constitution in light of contemporary values and consequences.

Civil Liberties

• Civil liberties are legally protected freedoms to act or not to act without unwarranted government intrusion.

• These liberties are detailed in several amendments to the Constitution and various Supreme Court decisions (e.g., 1st, 4th, 5th Amendments).

• Civil liberties are:

  • Not literal and not absolute.

  • Often limited in the interest of other goods like peace, security, civility, and order.

  • Limited if they violate criminal laws (e.g., 1st Amendment rights are not absolute).

• Examples:

  • Oregon v. Smith, 1990

  • Thomas v. Indiana, 1981

• All amendments are open to interpretation and debate beyond SCOTUS decisions.

Civil Rights

• Civil rights give people the right to participate in society and politics on an equal footing.

• They protect individuals from discrimination based on:

  • Sex/gender

  • Sexual orientation

  • Race/ethnicity

  • Religion

  • Age

  • Disability

  • National origin

• A series of subsequent Court rulings and federal laws make various forms of discrimination illegal.

• The drive for equality before the law for all Americans has been a long and incomplete process.

• Congressional statutes and Supreme Court decisions since the Civil War have been important in achieving equality.

• Struggles for and against equality/civil rights in America define its political history, present, and future.

• Social movements, activism, and grassroots organizing have led to fundamental changes and reforms implemented by the government.

Civil Liberties and Civil Rights - Highlights

• The meaning and enforcement of civil liberties and civil rights have varied over time.

  • Example: The 6th Amendment right to a public defender was not systematically observed until the 1970s.

• Americans do not perceive all Amendments as equally important.

  • Example: Differing views on the 2nd vs. 8th vs. 1st vs. 16th Amendments.

• Enforcement of constitutional guarantees is greatly influenced by the cultural climate.

  • Example: The 14th Amendment and various civil rights cases.

Supreme Court of the U.S. (SCOTUS) 2024

• SCOTUS Justices (2024) by political affiliation:

  • Top row:

    • Amy Coney Barrett (D. J. Trump, conservative)

    • Neil M Gorsuch (D. J. Trump, conservative)

    • Brett M. Kavanaugh (D. J. Trump, conservative)

    • Ketanji Brown Jackson (J. R. Biden, liberal)

  • Bottom row:

    • Sonia Sotomayor (B. Obama, liberal)

    • Clarence Thomas (G. Bush sr., conservative)

    • John G. Roberts (G.W. Bush jr, conservative)

    • Samuel A. Alito (G. W. Bush jr, conservative)

    • Elena Kagan (B. Obama, liberal)

Classical Liberalism

• Pioneered by John Locke, Adam Smith, John Stuart Mill, and others.

• Influenced the Declaration of Independence, the Constitution, the Amendments, and American political thought.

• Key concepts:

  • Social contract theory

  • Liberty

  • Individual rights

  • Equality

  • Rule of law

  • Constitutional Government (checks and balances, separation of powers)

  • Capitalism

  • Democracy

  • Pluralism: tolerance of political opposition, diverse political opinions, religious beliefs, lifestyles, etc.

  • Secularism

What is a Constitution?

• Constitutionalism: Belief in limiting power through a written charter.

• Constitutions vary in form across different countries.

• Constitutions embody intangible principles.

Constitutional Functions:

• Outlines the organization of government.

• Grants power and authority to government.

• Guarantees rights.

• Serves as a national symbol.

Establishment of the USA as a Sovereign Nation: Historical Milestones

• 1776: Declaration of Independence declared by thirteen British colonies.

• 1781: Articles of Confederation (first U.S. Constitution).

• 1786-87: Shays' Rebellion in Massachusetts highlighted the need to replace the Articles of Confederation with a new Constitution.

• 1787: Constitutional Convention in Philadelphia, with compromises and debates, resulting in the seven articles of the Constitution. The Federalist vs. Anti-Federalist debate led to the addition of ten amendments.

• 1789: Bill of Rights (ten amendments) submitted to Congress and then to the states for ratification.

• 1791: Ratification of the amendments by three-fourths of the states.

• By 1800: The seven articles and ten amendments formed the Constitution, becoming the law of the land. Over 200 years, 17 more amendments were added.

The Road to Nationhood

• The Declaration of Independence (Thomas Jefferson):

  • Idea of consent and social contract.

  • Between 1763 and 1776, British control conflicted with colonial self-interest and identity.

  • The Declaration stated colonists’ grievances against British rule and expressed political ideas and values, including:

    • Equality: "We hold these truths to be self-evident, that all men are created equal."

    • Government as creation and servant of the people.

    • Intrinsic rights constitute a higher law binding the government.

    • Governments are bound by their own laws.

First Draft of the Constitution: The Articles of Confederation

• State autonomy was preserved.

• Equal representation for the states was preserved.

• The central government was granted only a few important powers.

• There were no separate executive or national courts.

• Amendments were almost impossible.

• The Articles of Confederation provided for the dominance of the states in the political system and granted only a few powers to Congress.

Articles of Confederation versus the Constitution

• Executive Branch:

  • Articles of Confederation: None.

  • Constitution: President of the United States.

• Judiciary:

  • Articles of Confederation: No federal court system; judiciary exists only at the state level.

  • Constitution: Federal judiciary headed by the Supreme Court.

• Legislature:

  • Articles of Confederation: Unicameral legislature with equal representation for each state; delegates appointed by the states.

  • Constitution: Bicameral legislature (Senate and House of Representatives). Each state has two senators, while House apportionment is based on population. Senators were chosen by state legislatures (changed to direct popular election in 1913) for six-year terms, and House members by popular election for two-year terms.

• Fiscal and Economic Powers:

  • Articles of Confederation: The national government depends on states to collect taxes. States could coin money and sign commercial treaties.

  • Constitution: Congress can levy taxes, coin money, and regulate international and interstate commerce. States cannot coin money or enter into treaties.

• Military:

  • Articles of Confederation: The national government depends on state militias and cannot form an army during peacetime.

  • Constitution: The national government can maintain an army and navy.

• Legal Supremacy:

  • Articles of Confederation: State constitutions and laws are supreme.

  • Constitution: The National Constitution and national law are supreme.

• Constitutional Amendment:

  • Articles of Confederation: Requires agreement by all states.

  • Constitution: Requires agreement by three-fourths of the states.

The Making of the Constitution

• Prelude to Philadelphia Convention:

  • Major deficiency of the Articles was a weak central government.

  • Shays' Rebellion highlighted economic problems and the central government's weaknesses.

  • The Annapolis Convention led to a call for a constitutional convention.

• The Philadelphia Convention:

  • America in 1787 was sparsely populated, weakly defended, and internationally isolated.

  • Delegates were wealthy and educated.

  • Deliberations were held in secret.

  • The Great Compromise incorporated the Virginia Plan (strong national government) and the New Jersey Plan (strong state governments), creating numerical representation in the lower house and equal state representation in the upper house.

  • The Three-Fifths Compromise counted enslaved persons as a fraction for representation purposes.

  • A majority of Americans (landless, slaves, nonwhite persons, and women) were denied representation and participation.

Ratification

• Article 7 required approval by nine state conventions for the new government to take effect.

• Supporters of the Constitution were called Federalists, and opponents were Anti-Federalists.

• The Federalist Papers: Essays supporting the Constitution.

• The Anti-Federalist Papers: Argued that the Constitution created a monarchical power, weakened state governments, threatened individual liberty, and promoted a commercial empire.

Overview of the Constitution of 1787

• The Constitution stressed the powers of the national government and did not include a bill of rights.

The Fight for Ratification

• Federalists:

  • Favored a stronger central government.

  • Advocated federal control over the economy.

  • Believed in clear property rights.

  • Supported government by elites.

• Antifederalists:

  • Favored the balance of power resting with the states.

  • Advocated for clearly articulated rights (not just property).

  • Supported government by leaders with the economic interests of the people.

Federalists versus Antifederalists

• Federalists:

  • Property owners, creditors, merchants.

  • Believed elites were most fit to govern; feared excessive democracy.

  • Favored a strong national government.

  • Leaders: Alexander Hamilton, James Madison, George Washington.

• Antifederalists:

  • Small farmers, frontiersmen, debtors, shopkeepers, some state government officials.

  • Believed government should be closer to the people; feared concentration of power in the hands of the elites.

  • Favored the retention of power by state governments and protection of individual rights.

  • Leaders: Patrick Henry, George Mason, Elbridge Gerry, George Clinton.

Features of the Constitution

• Republicanism and Divided Powers:

  • The framers chose a Republican government (representative government) with divided powers.

  • A mixture of democratic/nondemocratic features was called for, including popular elections, indirect popular elections, and appointment.

  • The Constitution limited government power and diffused power to prevent tyranny.

  • Power was divided horizontally in a system of checks and balances (legislative, executive, and judicial branches) and vertically between national and state governments.

  • Divisions of power were designed to limit the influence of factions and to cope with human ambition.

The Constitution: The Legislative Branch

• Article I provided for a Congress consisting of two chambers (House and Senate).

• Different term lengths (2 years in the House, 6 years in the Senate).

• The Senate was designed to guard against “excessive democracy.”

• The Senate alone was given power to ratify treaties and approve presidential appointments.

• The House was given sole power to originate revenue bills.

The Constitution: Power and Consent

• Section 8 of Article I (the elastic clause) allows Congress to:

  • Collect taxes

  • Borrow money

  • Regulate commerce

  • Declare war

  • Maintain an army and navy

The Constitution: Expressed and Implied Powers

• Expressed powers: Specific powers granted by the Constitution to Congress and the president.

• Implied powers: Also known as the necessary and proper clause, provides Congress with the authority to make all laws that are “necessary and proper” to carry out its enumerated powers.

The Constitution: The Executive Branch

• The Constitution provided for establishment of the presidency in Article II.

• Executive branch powers:

  • The president can negotiate treaties (with approval of the Senate).

  • The president can grant reprieves and pardons.

  • The president appoints major departmental personnel.

  • The president can veto congressional enactments.

  • The president can convene Congress to a special session.

The Constitution: The Judicial Branch and Judicial Review

• The Constitution provides for establishment of the judicial branch in Article III.

• Judicial branch:

  • Includes the Supreme Court of United States.

  • Has the power to resolve conflicts between federal and state laws.

  • Has jurisdiction over citizen controversies from different states.

  • Judges are given lifetime appointments.

  • The Supreme Court assumed the power of judicial review (the power to declare laws unconstitutional, checks and balances).

The Constitution: National Unity and Power

• The U.S. Constitution allows states the freedom to pursue their own policies and also unifies the nation with a common economy.

• States were given tremendous leeway but were also asked to respect contracts made in other states.

• The U.S. Constitution stands supreme over state laws (Supremacy Clause, Article VI).

The Constitution: The Amending Process

• The Constitution established procedures for its own revision in Article V.

• Amending the Constitution requires supermajority approval of a two-thirds vote in Congress and adoption by three-fourths of states.

• The amendment process remains difficult and is rarely attempted, yet amendment is more plausible than under the Articles of Confederation.

Changing the Constitution

• Formal Amendment of the Constitution

  • Article V prescribes the formal amendment procedure.

  • The General Services Administration certifies the ratification and keeps tally of the states.

• Amendment by the Rules

  • The Constitution has been amended relatively few times (27).

  • Congress or state legislatures may initiate amendments.

  • Only Congressional initiation has been employed successfully.

  • New amendments must be ratified by the legislatures of three-fourths of the states or by conventions in three-fourths of the states.

• Change by Custom and Evolution

  • Changing values, expectations, and conditions have influenced constitutional attitudes and practices.

  • Examples include the development of political parties, the pledge of presidential electors, and the requirement for representatives to live within their districts.

  • Various Supreme Court cases and hearings have been instrumental in granting meaning to the Constitution.

• Amendments to the Constitution by Subject

  • Since the Bill of Rights (Amendments 1-10), only seventeen formal changes have been made to the Constitution.

  • Most have occurred in periods of reform and have affected the manner in which officials are elected and the operation and powers of the national government.

Achieving Fuller Democracy and Universal Suffrage

• The U.S. did not become a fully democratic nation until the 1960s, when a right to vote for African Americans has become enforced.

Chronology of Major Civil Rights Decisions, Laws, Amendments

• The drive for political equality has been a long process and remains incomplete.

• Congressional statutes and Supreme Court decisions since the Civil War have been important.

Interpreting the Constitution, Judicial Review

• The U.S. Constitution is the oldest surviving and one of the shortest.

• The language of the Constitution is general.

• These features lead to frequent needs for interpretation (Judicial branch, Supreme Court as the highest authority).

The Constitutional System of Checks and Balances

• The framers designed the Constitution to divide governmental functions among three branches and to create tension among the branches by allowing each one to influence the other two.

• American constitutional government means not just a separation of powers but also separate institutions sharing certain powers.

• The objective was to safeguard liberty by preventing a concentration of power.

A Single and Independent Executive

• The idea of executive authority was considered suspect at the time of the Convention.

• The Electoral College was a compromise between direct election, election by Congress, and election by state legislatures.

Adaptability

• The Constitution has adapted over time.

• The Constitution’s brevity necessitates interpretation.

• Elasticity exists in the language of the Constitution—some words and phrases have no precise meaning.

• The elastic clause gives Congress implied powers to meet new challenges and needs.

• The Constitution exalts procedure over substance, thus avoiding time-related policy choices.

People’s Role and Changing the Constitution: “Higher Law”

• The U.S. Constitution is a “higher law” that establishes a framework within which laws are made, and is a living document.

• Our understanding of it changes over time, even without amendment.

Judicial Review

• The Supreme Court can check laws made in the legislative branch and safeguard that they do not violate the Constitution. This power is called judicial review.

• Checks and balances (or separation of powers) ensures no one branch has a monopoly.

How Judicial Review Was First Established: Marbury v. Madison

• After the 1800 election, the Federalist Congress authorized 42 new justices of the peace, but some appointments were not delivered before Jefferson took office.

• William Marbury asked the Supreme Court to force delivery through a writ of mandamus.

• Chief Justice Marshall decided that:

  • Marbury was entitled to the job

  • Courts should be allowed to examine the legality of the actions of the head of an executive department

  • A writ of mandamus was not the proper remedy because the Supreme Court’s original jurisdiction made no mention of writs of mandamus.

The Significance of Marbury

• Reaffirmed that officers of the government were bound by law.

• Declared that laws contrary to the Constitution were not valid.

• The Court claimed authority to interpret the constitution (judicial review).

• The Court rejected the states’ desire to interpret the Constitution as argued in the Kentucky and Virginia Resolutions.

Judicial Review and the Framers

• Some framers expected the Court to exercise judicial review.

• Much controversy stems from the fact that the Constitution says nothing about how its words are to be interpreted.

• This opens room for different interpretations of the Constitution, depending who the judges on the bench are.

Comparing Systems of Government

• All democracies possess some form of an executive, a legislature, and a judiciary; however, the amount of power that each branch has varies.

• In the United States, the Founding Fathers sought to prevent any one branch from becoming too powerful by creating the system of checks and balances.

• Fearing monarchic dominance, the writers of the U.S. Constitution preferred limited government power in all branches rather than risk an overly powerful central government.

• Through usage and reinterpretation, constitutional provisions may take new shape over time.

• Presidential power has grown as Congress has delegated significant powers, such as the war power, to the president.

Critical Thinking: R. Dahl – How Democratic is the U.S. Constitution?

• R. Dahl discusses undemocratic features of the U.S. Constitution:

  • Implicitly condoning slavery (changed by the 13th amendment)

  • Lack of universal suffrage (changed by the 14th, 15th, 19th, 24th, 26th amendments)

  • Senators were not popularly elected, but appointed by state legislatures (changed by the 17th amendment)

  • The Electoral College (presidents are not popularly elected)

  • The Supreme Court (judges are not popularly elected)

  • Representation in the Senate: each state, regardless of the population size, has two representatives in the chamber

  • Limitations on Congressional power, particularly throughout the 1800s

• The population for which the early government was established was much less literate and informed, compared to the present times

• The Constitution was democratic enough to survive and adapt to changing values as time went by

• Americans believe in the legitimacy of the constitution, as well as in the legitimacy of democracy

Critical Thinking Questions

• Is the Supreme Court a check/limit on American democracy? What are the pros and cons of this check?

  • Sample Answer: The Supreme Court does act as a check on American democracy by ensuring that laws and actions align with the Constitution. Pros include preventing potential tyranny and protecting minority rights. Cons might involve the court overturning democratically supported laws, leading to accusations of judicial overreach.

• What are the pros and cons of the Supreme Court not being popularly elected? Do pros outweigh the cons? Why?

  • Sample Answer: Pros of not being elected: Justices can make decisions based on law, not public opinion, ensuring the protection of constitutional principles. Cons: The court may seem undemocratic and out of touch with popular sentiment. Whether pros outweigh cons is subjective but often depends on the belief that protecting constitutional rights is more critical than popular opinion.

• What are possible alternatives to having the Supreme Court/judicial review? How can principles of constitutionalism and constitutional government be safeguarded otherwise?

  • Sample Answer: Alternatives to judicial review could include legislative supermajorities to pass laws or a council of constitutional experts providing guidance. Safeguarding constitutionalism might involve strict adherence to constitutional principles in legislation and robust public discourse on constitutional matters.

• Should there be term limits for SCOTUS justices? What are the pros and cons for shorter term limits on the Supreme Court (e.g., 15 years vs. life appointments)?

  • Sample Answer: Pros for term limits: It would allow for more regular turnover, ensuring the court remains more reflective of current societal values. Cons: It could lead to a loss of expertise and independence, as justices might be more concerned about their post-term careers.

• How should the constitution be interpreted today: originalist or pragmatist approach? What are the pros and cons of each?

  • Sample Answer: Originalist approach: Pros include maintaining a consistent and historically accurate understanding of the Constitution. Cons: It may not address modern issues effectively. Pragmatist approach: Pros involve adapting the Constitution to current needs, potentially leading to more relevant and just outcomes. Cons: It risks distorting the original intent and opening the door to subjective interpretations.

• What amendments need to be added to the constitution to adapt the document to current times? What areas of life and policy areas should they cover?

  • Sample Answer: Potential amendments could address issues such as privacy in the digital age, campaign finance reform, or environmental protection, adapting the Constitution to contemporary challenges.

• What right in the Bill of Rights is most important?

  • Sample Answer: The 'most important' right is subjective and varies depending on individual values. Some might argue for freedom of speech (1st Amendment) as it underpins democracy, while others may prioritize the right to due process (5th Amendment) for fair legal treatment.